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A Constitutional Amendment on Marriage

All eyes are now on the Supreme Court after the Nov. 6 decision
by the U.S. Court of Appeals in Cincinnati upholding same-sex
marriage restrictions in four states. Because federal appellate
courts in four other jurisdictions have overturned such bans, the
Supreme Court is very likely to weigh in.

A few organizations and elected leaders, led by Texas Sen. Ted
Cruz, would like to short circuit that process. They are calling
for a constitutional amendment allowing states to bar same-sex
couples from marrying. One way or another, we’re approaching the
final stage of a sweeping and historic social transformation that
just 10 years ago seemed improbable at best.

We arrived at this moment through a combination of new state
laws, successful referenda, and rulings by judges from across the
political spectrum. While some opponents of marriage for homosexual
couples have decried such rulings as acts of “judicial
activism,” marriage laws, although traditionally reserved to
the states, must not be beyond the protections of our
Constitution.

No restrictions should be
imposed on marital freedom.

We’ve been down similar roads before. In 2004 and 2006,
Congress held unsuccessful votes on the Federal Marriage Amendment,
which was rightly opposed by many as an unprecedented, radical
departure from our nation’s traditions and history.

Amending the Constitution is an act of tremendous significance
that should be undertaken only with the utmost caution. While the
American Civil Liberties Union and the Cato Institute often
approach issues through different perspectives, our organizations
share a commitment to the preservation of the individual rights and
liberties that the Constitution secures for everyone in this
country.

Over the years, amendments to the Constitution were designed to
expand, not restrict, our assurances of personal freedom. Any
proposed amendment that would limit an essential aspect of such
freedom — the right to choose a spouse and form a household
— should be opposed.

That guidance applies to both liberals and conservatives. For
example, in response to the Supreme Court’s ruling in
Citizens United, many on the left and within the Democratic Party
have called for a constitutional amendment that would open the door
to significant limitations on political speech. Our organizations
have stood in principled opposition to this effort.

Likewise, an amendment permitting state laws to exclude a class
of persons from constitutional guarantees should also be seen as an
unacceptable attack on individual liberty.

Mr. Cruz and other advocates of his proposed amendment will no
doubt point out that it, unlike the Federal Marriage Amendment,
would do nothing to prevent states from extending the freedom to
marry to same-sex couples. This, however, is hardly the entire
story. The amendment is intended to do an end run around a
cornerstone of our system of checks and balances, judicial review.
By shielding state marriage laws from judicial scrutiny, the
amendment would prevent courts from safeguarding the rights of
same-sex couples. Had such an amendment been passed in the wake of
Loving v. Virginia, state bans on interracial marriage might still
be in place today.

No law should be immune from judicial review and no group of
citizens should be deprived of the Constitution’s
protections.

Our Framers created an incredible document that has served us
well for two-and-a-quarter centuries. However, the original
document was flawed in two major respects: It condoned
discrimination against women and people of African descent. At
great cost, we remedied those flaws — first by adopting the
14th Amendment to provide that “No State shall deny to any
person within its jurisdiction the equal protection of the
laws”; and second, by adding the 19th Amendment to provide
that voting rights “shall not be denied or abridged by the
United States or by any state on account of sex.” Surely, we
do not want to retrace those steps, nor compromise that principle,
nor once again codify in our revered Constitution the offensive
notion that we will, indeed must, tolerate unequal treatment.